Madhav Krishna Vasave vs The State Of Maharashtra
2021 Latest Caselaw 7527 Bom

  This Order is modified/corrected by Speaking to Minutes Order dated 11/06/2021

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
      CRIMINAL APPELLATE JURISDICTION

          ANT. BAIL APPLICATION NO.1217 OF 2021

Madhav Krishna Vasave                                         ... Applicant
     Vs
The State of Maharashtra                                   ... Respondents
                                           ...

Mr. S.R.Nargolkar i/by Shri Arjun Kadam for the Applicant.

Ms. P.P.Shinde, APP for the Respondent-State.

Mr. Shrikant S. Rathi for the Complainant/Intervenor.

CORAM : SANDEEP K. SHINDE J.

(VACATION COURT THROUGH VIDEO CONFERENCING) DATE : 4th JUNE, 2021.

P.C. :

This is an application for anticipatory bail in

Crime No.60 of 2021 registered with Byculla Police

Station for the ofences punishable under Sections

376(2)(n), 354(5), 417, 419, 427, 504, 506(2), 502 of

the Indian Penal Code, 1860 read with Section 66(C) of

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2 At the outset, it may be stated that the

learned Sessions Court vide order dated 17 th March,

2021 directed the State not to take coercive action

against the applicant; however, fnally declined to

grant pre-arrest protection.

PROSECUTION CASE:

3 Applicant is attached to constabulary cadre

of the Maharashtra Police since he joined force in 2006.

Presently, he is serving Trafc Department, Malabar Hill

Division, Mumbai. Complainant got acquainted with the

applicant around 2017 while being deployed for serving

at Byculla Police Station. The Complainant served as

'karkun' at Byculla Police Station since 2015 until she

was transferred to Cyber Cell, Mumbai in 2019-20. It is

apparent from the complaint that said acquaintance,

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developed into close friendship whereafter same

advanced into love afair. Complainant had alleged that

applicant suppressed his marital status and posed

himself, bachelor. However, in 2019 she came to know

that applicant was married person. Complainant

alleged, the applicant had informed her, his wife was

psychologically unwell/unft and hence, he desires to

divorce his wife. She alleged, in 2018 applicant had

borrowed money from time to time, which was

cumulatively to the tune of Rs.1,50,000/-. When she

demanded the said amount from him, she alleged,

applicant abused her. Thus, she severed ties with him.

However, to her dismay, his constant pressure and

persuations once again turned relationship to be

amicable. Complainant alleged, on the false promise of

marriage, he persuaded her to succumb to his physical

desires at various places and hotels. Later, relationship

soured. Thus, complainant would allege that he was

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pressurising her to maintain relationship. She would

allege that applicant had recorded her obscene videos

and was threatening to upload it on social media.

Specifcally, she alleged that applicant had sent

obscene videos on her mobile set and threatened that

he would disseminate the same to her relatives if she

would refuse to maintain the relationship with him.

She alleged that in September, 2020, her marriage with

one, Shailesh was proposed by her family to which she

had consented. It is the specifc allegation that on 29 th

September, 2020 when she was commuting from Pune

to Mumbai, applicant called her persistently and had

threatened to make the obscene videos viral if she did

not alight at Sanpada, a en-route place. In these

circumstances, the complainant alighted at Sanpada.

She alleged, the applicant snatched her mobile and

damaged it. She alleged applicant removed SIM and

memory card and took the same away. Whereafter on

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of the mobile, applicant declined to hand over it to her.

Thereafter, the complainant disclosed, 'state of afairs',

to the applicant's wife. She further alleged that on 1 st

October, 2020, applicant had sent a message to sister

of her fance. Resultantly, her proposed marriage

broken down. She alleged, the applicant had sent

objectionable messages on the face-book account of

her fance from his face-book account. Also, she

alleged that applicant by using pass-word of her face-

book account, had sent objectionable messages to

face-book account of sister of her fance. Whereafter

she lodged complaint on 1st March, 2021, subject crime

came to be registered against the applicant.

4 The learned counsel for the applicant

submitted that the sexual relationship between the

applicant and the complainant was consensual and

voluntary. It is contended that the complainant was

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submitted that there is diference between the 'breach

of promise to marry' and 'not to fulfll the false

promise'. It is submitted that the applicant was not

having any intention to deceive the complainant. In

support of the contention, the learned counsel for the

applicant has relied on the judgment of the Hon'ble

Supreme Court in the case of Pramod Pawar v. State

of Maharashtra1

5 Mr. Nargolkar, the learned counsel for the

applicant would submit that the allegations of

recording obscene videos are false and infact, applicant

has handed over his mobile phone to Investigating

Ofcer. Mr. Nargolkar has relied on the afdavit of the

complainant to contend that applicant does not

possess any lap-top or computer or any other such

device, which can be used and capable of storage and/

1 2019 (9) SCC 608

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Nargolkar further contended that allegations of

snatching mobile and damaging the same occurred on

2nd October, 2020 was false and concocted story. Mr.

Nargolkar in support of his contention argued that on

30th September (i.e., the next day), applicant had

purchased new mobile for the complainant from Vijay

Sales India Private Limited. It is so evident from the

copy of the invoice placed on record at Page 49 of the

application. Therefore, it is submitted that applicant

has been falsely implicated. It is further submitted that

since applicant has handed over mobile hand-set to the

Investigating Ofcer to verify/ascertain allegations of

recording obscene pictures, his custodial interrogation

is not required. Thus, argued that allegations of sexual

assault are false, since complaint and history of assault

narrated by the complainant to Medical Ofcer, prima-

facie, shows such relationships were not forced on her

and thus, consensual. Mr. Nargolkar further submitted

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since he is suspended from the service after the

subject crime was registered against him. On these

grounds, applicant seeks pre-arrest bail

6 Application is opposed by the learned

counsel for the complainant. It is submitted that the

SIM Card, damaged phone and the HD Card is material

relevant and essential to retrieve the obscene

video/videos sent by the applicant. It is submitted that

to recover the damaged phone and SIM card,

applicant's custody is imperative.

7 Be that as it may, the complaint, prima-facie

suggests that love and sexual relationship between the

applicant and the complainant was consensual and

voluntary since beginning. It may be stated that after

lodging the complaint, complainant, was examined by

the medical ofcer. In history narrated by her to the

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physical relationship with the applicant in August,

2020. The alleged incident of damaging her cell phone

in October, 2020 to cause dis-appearance of the

evidence is prima-facie, doubtful in view of the fact

that on second day, i.e., on 30th September, 2020 a

new hand-set was purchased from M/s. Vijay Sales as

evident from the invoice copy of the same being placed

on record.

8 Thus, taking into consideration facts of the

case and since applicant has now been suspended from

the service, he would be available for investigation and

further since he has already handed over his mobile

phone to the Investigating Ofcer for further analysis,

prima-facie, I am of the view that, case is made out for

granting interim pre-arrest protection to the applicant.

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obscene videos of the complainant is concerned and

further, the allegations that videos and messages were

sent to the complainant are concerned, the learned

Additional Public Prosecutor has placed on record

communication received from the Directorate of

Forensic Science Laboratory. This communication

shows that forensic expert will trace, the deleted or

available data, produced on social media account,

available in the mobile phone. In the circumstances,

ofce of the Directorate of Forensic Science Laboratory

is requested to expedite the process and submit

opinion and report in relation to video images recorded

in the mobile phone of the applicant and related

available data thereof to the Investigating Ofcer

preferably on or before 15th July, 2021. The concerned

Investigating Ofcer shall also make eforts to contact

respective companies operating social media platforms

to trace and seek report in respect of the use of such

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making viral the alleged obscene videos relating to the

complainant.

10 Investigating ofcer shall place the reports

before this Court for further consideration on 19 th July,

2021. The Investigating Ofcer shall send a copy of this

order to the ofce of Directorate of Forensic Science

Laboratory with a request to send a report on or before

16th July, 2021.

List the application for further consideration

on 19th July, 2021.

11 In the meantime, in the event of arrest of the

applicant in Crime No.60 of 2021 registered with

Byculla Police Station, he shall be released on

executing PR bond for the sum of Rs.50,000/- with one

or more sureties in like sum.

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12 The applicant shall join the investigation as and

when called and shall not contact the complainant or

infuence prosecution witnesses.

List the application on 19th July, 2021 for further

consideration.

(SANDEEP K. SHINDE, J.)

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